Volume: 41

Number: 5

OSCE PARTICIPATING STATES CONVENE MEETING ON RELIGIOUS FREEDOM

By Erika B. Schlager, Counsel for International Law

On July 9-10, the OSCE participating States held their second Supplementary Human Dimension Meeting (SHDM) of 2009. Convened in Vienna at the seat of the Permanent Council, this meeting was devoted to the consideration of “Freedom of Religion or Belief.” During the meeting, several speakers drew attention to the murder of a pregnant Muslim woman in a German courtroom just prior to the SHDM. The victim was in court in connection with a legal action against a man who had called her a “terrorist,” possibly because of her hijab, a head covering. The man against whom she was taking legal action stabbed her multiple times, killing her and her unborn child. The German delegation provided information on the government’s condemnation of the crime, and early efforts to investigate and prosecute the perpetrator.

Background on Supplementary Human Dimension Meetings

Each year, the OSCE convenes three SHDMs. The subjects for these meetings are chosen by the OSCE Chair-in-Office, in consultation with the participating States. The OSCE Office for Democratic Institutions and Human Rights often plays a central role in organizing them. The SHDMs have been held since 1999 and, as conceived, were intended to bring the discussion of time-sensitive human dimension issues to the seat of the Permanent Council.

Although, as a rule, these meetings are held in Vienna to facilitate participation by the participating States’ missions to the OSCE, it is debatable whether the degree of engagement by Permanent Council delegations actually warrants continuing to hold these meetings in Vienna, as opposed to other cities.

Varying the location of OSCE meetings draws in a broader segment of the OSCE
public, as has been the case with the High Level meetings on tolerance issues,
which have been held in Berlin, Paris, Brussels, Bucharest, and Cordoba.

A Supplementary Human Dimension Meeting on “Defense Lawyers” was hosted
by Georgia in Tbilisi in 2005.

The other two subjects chosen by the Greek Chair-in-Office for this year’s SHDMs are “Hate Crimes: Effective Implementation of Legislation” (May 4-5) and “Gender Equality, with a special focus on combating violence against women” (November 5-6).

U.S. Delegation

Kurt Donnelly presenting U.S. views

The U.S. Delegation included U.S. Commission on International Religious Freedom (USCIRF) Chair Leonard Leo, as well as Commissioners Michael Cromartie, Talal Eid, Felice Gaer, and Elizabeth Prodromou and USCIRF staff; Kurt Donnelly, Director of the Department of State’s Office of International Religious Liberties (a part of the Bureau of Democracy, Human Rights and Labor); and others from the Department of State, the U.S. Mission to the OSCE and the staff of the Helsinki Commission.

NGO Participation

Approximately 100 non-governmental representatives participated in a civil society round-table prior to the opening of the meeting. Their discussion illustrated particularly divergent views on evolving concepts of tolerance and equal rights for all persons regardless of sexual orientation or gender identity on the one hand and, on the other, the concerns of representatives of some religious groups that their rights may be placed in conflict with these evolving norms. (The case of a Swedish pastor charged in 2003 under Sweden’s hate speech laws for giving a particularly vitriolic anti-homosexuality speech was presented as one of several examples. The Swedish Supreme Court finally overturned his conviction as, i.a., a violation of the European Convention on Human Rights.)

A number of NGOs made positive reference to the “Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools,” prepared by the OSCE Advisory Council of Experts on Religion or Belief in 2007. However, it was suggested that these principles were not known to all the NGOs present and therefore could not be referenced in their consensus recommendations.

NGO recommendations which did emerge from this civil society roundtable were limited, and included a call for freedom of religion or belief to be “mainstreamed” in the work of the OSCE, for OSCE participating States to implement their commitments in this field and to draw on the expertise of ODIHR in doing so, and for the participating States to support a public space for dialogue. There was broad and deep support for recognition of the rule of law as an essential pre-requisite for full enjoyment of freedom of religion or belief.

In addition, NGOs organized side events, including an event by Freedom House focused on issues relating to the 2010 chairmanship of the OSCE by Kazakhstan. Freedom House shared information on its newly launched website, www.oscemonitor.org, created to examine the human rights and democracy promotion work in the OSCE, with a special emphasis on Kazakhstan’s 2010 chairmanship. Freedom House described growing hostility towards “non-traditional” faiths in Kazakhstan, increasing state controls over religious communities, and the passage of a restrictive religion law after Astana secured the OSCE chairmanship.

Religious Liberties in the OSCE

The OSCE does hold regular discussions on freedom of religion. It is a regular agenda item at the OSCE’s annual two-week Human Dimension Implementation Meetings. (Those meetings are convened each fall in Warsaw, Poland, where the OSCE Office for Democratic Institutions and Human Rights is based.) The annual implementation review meetings cover the full range of OSCE human dimension commitments, and typically only one three-hour session is available for discussion of freedom of religion and belief. That amount of time is consistently inadequate for the large number of speakers who wish to address this subject, and it is often the case that some speakers are never able to take the floor and others have the time available for remarks restricted to just two or three minutes. The last OSCE Supplementary Human Dimension Meeting on religion was held in July 2003.

In years in which a summit of Heads of State or Government are held,
the two-week Human Dimension Implementation Meeting is replaced
with a full-scale Review Conference of all OSCE commitments in all
dimensions. This review precedes the summit.

During the 2008 Human Dimension Implementation Meeting, freedom of religion or belief was selected as a special one-day topic, providing additional opportunities for people to address this subject. At some previous Human Dimension Implementation Meetings, where the usual half-day available for consideration of freedom of religion or belief has proven insufficient, religious liberties issues have spilled over into the sessions devoted to other (related but distinct) topics, such as combatting intolerance straining the available time for discussion in those sessions as well.

In addition to the 2009 SHDM on freedom of religion or belief, other OSCE meetings were held in recent months on related (albeit distinct) tolerance subjects were held. In particular:

• On December 17, 2008, the Office for Democratic Institutions and Human
Rights convened a Roundtable in Vienna on “Intolerance and
Discrimination against Muslims” (with a focus on youth and education).

• On February 4, 2009, the Office for Democratic Institutions and Human
Rights held an informal briefing in Vienna for PC delegations by members
of the Advisory Panel of Experts on Freedom of Religion or Belief. The
Panel consists of about 15 experts selected by the ODIHR Director, who
serve as a steering group for the Panel, and other members nominated
by the participating States (up to two per state).

• On March 4, 2009, the Office for Democratic Institutions and Human
Rights convened a Roundtable in Vienna on “Intolerance and
Discrimination against Christians, focusing on exclusion, marginalization
and denial of rights.”

• On March 17, 2009, the Office for Democratic Institutions and Human
Rights convened a Roundtable on “Combating Anti-Semitism.”

The Supplementary Human Dimension Meeting was opened by the Director of the OSCE Office for Democratic Institutions and Human Rights, Ambassador Janez Lenarcic with a keynote address by Professor Ombretta Fumagalli Carulli of the Catholic University of the Sacred Heart in Italy. In addition, the opening session was addressed by all three Personal Representatives of the Chair-in-Office in the field of combating intolerance: Adil Akhmetov, Personal Representative on Combating Intolerance and Discrimination against Muslims, Rabbi Andrew Baker, Personal Representative on Combating Anti-Semitism, and Mario Mauro, Personal Representative on Combating Racism, Xenophobia and Discrimination, also focusing on Intolerance and Discrimination against Christians and Members of Other Religions. Many members of the ODIHR Panel of Experts on Religion or Belief participated in the meeting as well.

As at other human dimension meetings, participants were frequently exhorted by the moderator to make extemporaneous remarks with a view to fostering a “dialogue.” More often than not, both NGOs and governments delivered prepared remarks (many of which were also circulated in print). This reflects, most likely, the desire of participants to have their points clearly understood and “on the record.” More informal discussions, dialogue, and other exchanges of views occurred during the side events, in the corridors and over coffee, and in bilateral meetings.

The agenda was divided into three working sessions, held in succession: 1) from commitments to implementation; 2) status of religious or belief communities; and 3) places of worship. (Unlike the opening and closing sessions, these working sessions were intended to be more informal, and were held without the benefit of a speakers list or name plates.) Among the concerns participants raised during the meeting were:

• The unequal treatment of different religions under national laws, particularly
for the purpose of official recognition;

• The use of laws against “extremism” against religious groups that may be
disfavored by the state;

• State interference in the ability of people to pray and worship;

• The difficulty religious groups may face in obtaining property or having
property rights respected (including problems relating to the return of
property confiscated by previous regimes);

• The scope of the application of anti-discrimination laws to religious
organizations;

• Attacks on places of worship;

• Social hostility or stereotyping of religions in ways that may then impede
the abilityof religious organizations to secure property rights.

Observations

The two days of discussions illustrated the relationship between the promotion of tolerance and respect for the right to freedom of religion or belief – related but distinct goals that might be viewed as overlapping (or even mutually reinforcing) circles on a Venn diagram.

During the discussion on places of worship, for example, many participants discussed problems some religious communities face in getting building permits for new houses of worship. They argued that the ability to have a house for communal worship is an essential element for the practice of one’s faith, and therefore a component of the right to freedom of religion or belief. Societal prejudices clearly play a role in creating and solidifying barriers in this area, but many concrete disputes raised by NGOs focused on the role of state or government actors in this area, i.e., the need to eliminate religious bias on the part of the state in execution of its functions, or to ensure a separation of church and state altogether. During the same discussions, participants also remarked on the problem of violent attacks on some places of worship – a problem closely followed in the context of the OSCE’s work in promoting tolerance. In the cases that were raised, the state itself was not accused of fomenting or engaging in the attacks, but it was argued that the state has a responsibility to effectively investigate and prosecute such attacks (which, in all likelihood, would have a preventative or deterrent effect as well).

This meeting also illustrated how tolerance and religious liberties issues – at least as envisioned by some – are not only related but potentially in conflict. Several participants alluded to this, often expressing concern that anti-discrimination laws would compel their religious organizations to hire people who are not adherents of their faith, or that hate speech laws which are intended to protect people based on their sexual orientation would be used against people for whom opposition to homosexuality is a tenant of their religious faith. Alternative views were expressed by other NGOs.

In general, the meeting was well attended and offered a welcome opportunity for religious liberty issues to be addressed more fully than during the Human Dimension Implementation Meeting. However Vienna is, inevitably, a relatively more convenient location for some NGOs and less convenient and costly for others, and NGO participation may have been effected as a consequence. That said, if a greater number of participants had attended, it might have been difficult to accommodate all the people seeking to speak – the opening session was so full that it would have been difficult even to bring more observers in to the room.

Many speakers noted that this meeting on religious liberties was held twenty years after the adoption of the 1989 Vienna Concluding Document, which is widely viewed as significantly elaborating on and advancing the Helsinki Final Act’s Principle VII. Specifically, Principle VII committed the participating States to “[re]spect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief.” Although the issues raised under this commitment have changed considerably since 1975, the saliency of the participating States’ obligation has clearly endured.